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Jewish World Review Oct. 17, 2005 / 14 Tishrei, 5766 Why Miers? After 9-11, priorities shifted By Jonathan Gurwitz
http://www.JewishWorldReview.com |
I have no idea whether Harriet Miers is qualified to serve on the Supreme Court. Neither do most of the other pundits who, despite decrying the dearth of public information about Miers, have become instant experts on her nomination.
Miers is a Bush crony. Miers could be a strict constructionist phony. Big deal.
Who ever heard of a president appointing a personal friend to the Supreme Court?
Well, Democrats — and Texas Democrats, in particular.
In the 1948 Texas Democratic primary, Lyndon Johnson achieved his "landslide," 87-vote victory over Coke Stevenson for the U.S. Senate seat. He did so with belated, amended returns from Precinct 13 in Jim Wells County.
Stevenson contested the results all the way to the U.S. Supreme Court, where LBJ friend and attorney Abe Fortas succeeded in quashing the legal challenge.
Seventeen years later, President Johnson appointed Fortas to the high court. As part of a scandal-ridden and ultimately failed attempt to promote Fortas to chief justice in 1968, LBJ nominated his old Austin pal Homer Thornberry to succeed Fortas as associate justice.
Republicans, meanwhile, should remember Robert Bork, the effort to "bork" Clarence Thomas and the principle that presidents should send their Supreme Court nominees to the Senate for advice and consent without getting the advance, unanimous approval of every special interest.
Now some Republicans are outborking the Democrats. Without a hint of irony, Bork himself has called the Miers nomination "a disaster on every level."
The disaster, by this telling, has two dimensions. First, Miers lacks the proper educational, judicial and Federalist Society pedigree. John Roberts — Harvard, Harvard Law, Rehnquist clerk and Reagan administration attorney — was the consummate nominee for the conservative establishment.
Miers — SMU, SMU Law, a Texas clerkship and a Dallas legal practice — is no Roberts. But as Texas Sen. John Cornyn pointed out in an op-ed piece in the Wall Street Journal, Miers would fill an important gap on the Supreme Court as someone who understands the consequences of the court's decisions for the American people.
With the exception of Roberts, none of the sitting justices has been an advocate in a court of law in more than two decades. They've ruled from behind the bench.
They've taught from behind the lectern. And from these locations or from a farmhouse in New Hampshire, the court's recent Kelo decision against private property rights makes perfect legal sense.
Someone who has been the president of the Texas Bar Association and represented Microsoft hardly qualifies as a tribune of the people. But Miers' political and professional career brings her a step closer to the citizenry.
The second dimension of Bork's perceived disaster concerns social conservatism's keystone issues. Yes, Miers is judicially inscrutable, but not appreciably more so than Roberts and certainly not in such a way that conservatives should now be committing political hari-kari as Howard Dean looks on with glee.
Bush has essentially said to his core constituency, "Trust me." Having elected him twice, they should at least wait for Miers to face the Senate Judiciary Committee before pulling out their knives.
At the same time, conservatives should realize the top policy priority for this administration — and potentially many administrations to come — is the war on terror. That explains much about a nomination so many people find to be so inexplicable.
Senate Judiciary Committee Chairman Arlen Specter, R-Pa., has said Miers will face vigorous questioning as a result of her lack of judicial experience and scholarship. And well she should. If in the course of that questioning the Senate determines she's not qualified to serve on the Supreme Court, it should reject her nomination.
But not because she's friends with the president, not because she didn't go to Harvard, not because she worked in Dallas rather than Washington and not because constitutional issues regarding war and peace have the potential to supersede traditional, domestic concerns.
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JWR contributor Jonathan Gurwitz, a columnist for the San Antonio Express-News, is a co-founder and twice served as Director General of the Future Leaders of the Alliance program at NATO Headquarters in Brussels, Belgium. In 1986 he was placed on the Foreign Service Register of the U.S. State Department.Comment by clicking here.
© 2005, Jonathan Gurwitz |
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